Judge: Mary H. Strobel, Case: 21STCP02671, Date: 2023-04-20 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP02671    Hearing Date: April 20, 2023    Dept: 82

            Petitioner Keith Ly (“Petitioner”) petitions for a writ of administrative mandate directing Respondents Osteopathic Medical Board of California (“Board”) and Dr. Cyrus Buhari (collectively, “Respondents”) to set aside the final administrative decision of Board to deny Petitioner’s application for reinstatement of his Osteopathic Physician’s and Surgeon’s Certificate (“Certificate”).  This hearing was continued from April 6, 2023 at Petitioner’s request.

Background

Petitioner’s License History and Discipline

            On December 1, 1998, Board issued Certificate number 20A7355 to Petitioner. (AR 81.) 

            On or about August 24, 2015, Board issued an Automatic Suspension of Petitioner’s Certificate, pursuant to Business and Professions Code section 2310. (AR 4.)  In a default decision and order (“Revocation Decision”), effective March 10, 2016, Board revoked Petitioner’s Certificate.  (AR28.)  The Automatic Suspension and Revocation Decision arose from Petitioner’s discipline by the Washington Board of Osteopathic Medicine and Surgery (“Washington Board”).  (AR 373.) 

Specifically, as described in the Revocation Order, on September 22, 2014, the Washington Board issued an Ex Parte Order of Summary Action under which Petitioner’s Washington license was suspended.  The Washington summary suspension was based on Petitioner’s conviction in federal district court for numerous counts, including conspiring to manufacture and distribute marijuana, manufacturing marijuana in proximity to a school, maintaining drug-involved premises, and wire fraud.  The summary suspension was also based on Petitioner’s violation of the rules of the Department of Health’s Immunization Program, including hiring individuals with no health care credentials for positions that required credentials and failure to keep adequate sanitation. The Washington Board determined these findings established the existence of an immediate endanger to the public health, safety, or welfare.  (AR 29-30, 39-42.)  Further, on May 27, 2015, the Washington Board filed a Second Amended Statement of Charges, setting forth causes for license discipline based on the irregularities in Petitioner’s handling and administration of immunizations, unsanitary office conditions, criminal convictions, prescribing of controlled substances after his DEA privileges were suspended, and practice of medicine after the Washington Board suspended his license.  (AR 29-30, 43-52.)

On July 25, 2016, after Petitioner’s Certificate was revoked by the Board, the Washington Board issued a Final Order in which it found that Petitioner had engaged in numerous acts of unprofessional conduct as alleged in the Second Amended Statement of Charges and that aggravating factors, criminal and immoral conduct, and lack of remorse, warranted a license suspension of eight years. (AR 242-267.) In arriving at the suspension, the Washington Board noted the following factors in aggravation: “gravity of the unprofessional conduct; potential for injury due to the unprofessional conduct; no culpability/denies responsibility; intentional acts; motivation is criminal, immoral, and dishonest and for personal gain; failure to cooperate and obstruction of investigation; lack of remorse; illegal conduct; ill repute upon the profession; and lack of potential for rehabilitation.” (AR 264-265.) The Washington Board also required Petitioner, prior to applying for reinstatement of his license, to complete 12 hours of a board-approved ethics course, submit to a mental evaluation, complete a class in medical office administration, and complete a formal physician practice reentry program. (AR 265.)

Petitioner’s Criminal Conviction and Sentence

            As noted in the Revocation Decision, Petitioner was convicted in federal court of numerous counts, including conspiring to manufacture and distribute marijuana, manufacturing marijuana in proximity to a school, maintaining drug-involved premises, and wire fraud.  Petitioner was sentenced to 60 months in federal prison.  He was incarcerated from November 2014 through 2018 and thereafter placed on supervised release until March 2019.  (See AR 172-183, 224-227, 380-381.)  The conviction was affirmed on appeal by the Ninth Circuit Court of Appeals.  (AR 230-236.)

Board Denies Petition for Reinstatement of Revoked License

On or about June 4, 2020, Petitioner filed a Petition for Reinstatement of his revoked certificate in California. (AR 1-26.)  In his Petition for Reinstatement, Petitioner included a Personal Statement, in which he explained he had a successful medical practice and cosmetic practice in the Seattle, Washington area for over eight years. With the proceeds from his medical practice, he invested in three residences in the Seattle area with the intent of renting them out for additional income. In April 2011, he began to date Tram Bui, “a very beautiful young woman,” who had come to the United States from Vietnam. Petitioner and Bui married in 2012 and have a daughter together. Given Petitioner’s time constraints, Bui took over the property management responsibilities.  (AR 5.)  Petitioner further wrote that Bui rented out the houses, but Petitioner did not know to whom; and that it was “discovered” after a fire broke out that the houses were being used as marijuana grow houses.  Petitioner wrote: “Looking back on this period of my life I realize there were many warning signs concerning what was going on around me and what I didn’t want to believe was the truth.”  Petitioner wrote that he was “‘blinded’ by the love and trust I had for Ms. Bui.”  (AR 5.)  

Petitioner also submitted letters from medical colleagues who supported his petition for reinstatement (AR 7-17, 384-385), as well as evidence of medical-related work and continuing medical education since his release from prison.  (AR 18-26.)

A hearing on the Petition for Reinstatement was held before the Board on May 13, 2021.  (AR 295-355.)  In a decision that became final on August 20, 2021 (“Reinstatement Decision” or “Decision”), the Board denied Petitioner’s Petition for Reinstatement, finding insufficient evidence of rehabilitation.  (AR 373-387.)  

Writ Proceedings

            On August 17, 2021, Petitioner, in pro per, filed his petition for writ of administrative mandate.  As pleaded, the petition includes three causes of action titled as follows: (1) “A Full and Fair Hearing is Required”; (2) “Res Judicata and Issue Preclusion”; and (3) “The Fourteenth Amendment Violations.” 

Petitioner named the superior court as the respondent and Board, Dr. Buhari, and attorney Alexander Kirkpatrick as real parties in interest.  Petitioner should have named Board, Dr. Buhari, and Kirkpatrick as respondents.  The court will refer to Board, Dr. Buhari, and Kirkpatrick as “Respondents.”

Board and Dr. Buhari have answered the petition.  No appearance has been made by Kirkpatrick.

On November 7, 2022, Petitioner filed his opening brief in support of the petition.  The court has received Respondents’ opposition, Petitioners’ reply, and the administrative record.

Standard of Review

Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion.  An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence.  (CCP § 1094.5(b).)

“An applicant for reinstatement of a revoked license is in the same position as a person seeking a license in the first place. [Citations.] Accordingly, the trial court … [is] limited to a determination of whether the Board's findings are supported by substantial evidence in light of the whole record.”  (Flanzer v. Board of Dental Examiners (1990) 220 Cal.App.3d 1392, 1397; see also Housman v. Board of Medical Examiners  (1948) 84 Cal.App.2d 306, 312-314.) 

Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85), or evidence of ponderable legal significance which is reasonable in nature, credible and of solid value. (Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 305 n. 28.)  “Courts may reverse an [administrative] decision only if, based on the evidence …, a reasonable person could not reach the conclusion reached by the agency.”  (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)   

Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that substantial evidence does not support the findings.  (See Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.)  When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)  A reviewing court “will not act as counsel for either party … and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’”  (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)  “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.”  (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioner’s cited cases in reply are inapposite and do not support applying a different standard of review to any issue.  (Reply 3, citing Rabkin v. Oregon Health Sciences Univ., 350 F.3d 967, 977 (9^th Cir. 2003); In re Korean Air Lines Co., Ltd., 642 F.3d 685, 698 (9^th Cir. 2011); Alcazar v. L.A. Unified Sch. Dist., 29 Cal.App.5^th (2018).) 

Analysis

Legal Standard Applicable to Petition for Reinstatement

            At an administrative hearing on a petition for reinstatement of a professional license, the applicant “must show by … clear and convincing evidence that efforts made towards rehabilitation have been successful.”  (Hippard v. State Bar (1989) 49 Cal.3d 1084, 1089.)  Petitioner cites no authority to the contrary as applied to medical licensees.

“‘[I]n a proceeding for the restoration of a revoked license, the burden at all times rests on the petitioner to prove that he has rehabilitated himself and is entitled to have his license restored, and not on the board to prove to the contrary.’ As an applicant for reinstatement, [Petitioner] is not in the position of an untried newcomer, but a fallen licentiate. Under the circumstances, it is not unreasonable for the Board to be exacting in its requirements as to proof of reform. It goes without saying that the pertinent issues in the inquiry are [Petitioner’s] activities since revocation of his license and his present qualifications, ability and learning.”  (Flanzer, supra, 220 Cal.App.3d at 1398; see Housman v. Board of Medical Examiners (1948) 84 Cal.App.2d 306, 315.)

Business and Professions Code section 2307 and California Code of Regulations, title 16, section 1657 govern Board’s review of a petition for rehabilitation. 

Section 2307(e) states in pertinent part: “The panel of the board or the administrative law judge hearing the petition may consider all activities of the petitioner since the disciplinary action was taken, the offense for which the petitioner was disciplined, the petitioner’s activities during the time the certificate was in good standing, and the petitioner’s rehabilitative efforts, general reputation for truth, and professional ability.”

Section 1657(a) provides as follows:

(a) When considering a petition for reinstatement or a petition for modification of penalty, the Board, in evaluating the rehabilitation of the applicant and his or her present eligibility for a certificate or permit, may consider all activities of the petitioner since the disciplinary action was taken and shall also consider the following criteria:

(1) The nature and gravity of the act(s), professional misconduct, or crime(s) for which the petitioner was disciplined.

(2) Evidence of any act(s) or crime(s) committed subsequent to act(s), professional misconduct, or crime(s) for which the petitioner was disciplined which also could be considered as grounds for denial under Section 480 of the Business and Professions Code.

(3) The time that has elapsed since commission of the act(s), professional misconduct, or crime(s) referred to in subdivision (1) or (2) above.

(4) Whether the petitioner has complied with any terms of parole, probation, restitution, or any other sanctions lawfully imposed.

(5) Petitioner's activity during the time the certificate was in good standing.

(6) Evidence, if any, of the rehabilitation submitted by the petitioner.

(7) Petitioner's professional ability and general reputation for truth.

Petitioner Received a Fair Hearing on his Petition for Reinstatement

In his first cause of action, Petitioner contends that Board deprived him of a fair hearing and due process of law on his petition for reinstatement for several reasons.  (Opening Brief (“OB”) 2-7; Pet. 3-4.)  Although his claims are not always clear, Petitioner does assert that he was not provided effective assistance of counsel and that Board erred in relying on certain evidence.  (OB 4-7.) 

Under CCP section 1094.5(b), the pertinent issues include whether there was a fair trial.  “Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’”  (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.)  Due process principles, as applied to administrative proceedings, are similar.  (See Ibid. and Gross v. Lopez (1975) 419 U.S. 565.)  Procedural errors, “even if proved, are subject to a harmless error analysis.”  (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.)   

Ineffective Assistance of Counsel

Petitioner contends that he was deprived of effective assistance of counsel in the reinstatement hearing because his attorney, Kirkpatrick, had insufficient time to prepare.  (OB 4, 8, citing AR 306, 277-294 and OB Exh. A.)  Petitioner cites a letter dated May 12, 2021, from Kirkpatrick to the presiding administrative law judge of the Office of Administrative Hearings.  (OB Exh. A.)  Kirkpatrick requested a continuance of the May 13, 2021, hearing on the basis that he was just recently retained and was “too pre-occupied” with three other appeals “to be able to focus on [Petitioner’s] reinstatement petition.”  (Ibid.)  Petitioner also cites to page 12 of the Board hearing, at which Kirkpatrick stated “I’ve only been working this matter for a day.”  (AR 306.) 

As a general rule, there “is no right to counsel in civil cases.”  (White v. Board of Medical Quality Assurance (1982) 128 Cal.App.3d 699, 707.)  “Administrative proceedings are civil in nature.”  (Borror v. Dept. of Investment (1971) 15 Cal.App.3d 531, 540.)  Specifically, there is no right to effective assistance of counsel in an administrative proceeding concerning a professional license.  (See White, supra, 128 Cal.App.3d at 707 [holding there was no defense for ineffective assistance of counsel in administrative cases].  Petitioner cites no authority to the contrary. 

Denial of Continuance

While the argument is not fully developed in the writ briefs, Petitioner appears to argue  that the OAH or Board prejudicially abused its discretion in denying a request for a continuance.  However, Petitioner did not timely pursue this issue.  Government Code section 11542 provides that “in the event that an application for a continuance by a party is denied by an administrative law judge of the Office of Administrative Hearings, and the party seeks judicial review thereof, the party shall, within 10 working days of the denial, make application for appropriate judicial relief in the superior court or be barred from judicial review thereof as a matter of jurisdiction.”  Petitioner’s argument that he was precluded from timely pursuing the claim because he was represented by counsel is unpersuasive.   

Board Did Not “Relitigate” Issues

Petitioner contends that Respondents improperly “relitigated issues beyond their scope in violation of Business and Profession Code 2036(a) as previously utilized in a summary hearing to revoke Keith Ly's D.O. license, see sentencing transcript.”  (OB 4.)  Petitioner seems to contend that Board improperly relied on information related to his criminal conviction in its decision on the petition for reinstatement. 

Section 2036 has no apparent relevance to Board’s decision to deny reinstatement.  Business and Professions Code section 2036 states in full: “Whenever a course of instruction is required for any certificate, it shall be satisfied by a resident course of medical instruction. Whenever a resident course of instruction is mentioned in this chapter, it shall be interpreted to mean classroom, laboratory, practical, and clinical instruction, received and given the person physically present, wherever prescribed as a part of his or her instruction and for the period prescribed for such instruction.” 

Board did not mention section 2036 in its Decision or find that Petitioner failed to complete a course of instruction required for his California Certificate. 

In its decision to deny reinstatement, Board’s reliance on information from Petitioner’s criminal conviction, including the sentencing transcript, was appropriate.  The revocation of Petitioner’s Certificate was based on discipline imposed by the Washington Board, which resulted in part from Petitioner’s criminal conviction.  Pursuant to Business and Professions Code section 2307(e), in deciding Petitioner’s application for reinstatement, Board was expressly required to consider “all activities of the petitioner since the disciplinary action was taken, the offense for which the petitioner was disciplined, the petitioner’s activities during the time the certificate was in good standing, and the petitioner’s rehabilitative efforts, general reputation for truth, and professional ability.”  (bold italics added.)  Section 1657, of the Title 16 of the California Code of Regulations, similarly required Board to consider “(1) The nature and gravity of the act(s), professional misconduct, or crime(s) for which the petitioner was disciplined.…  (4) Whether the petitioner has complied with any terms of parole, probation, restitution, or any other sanctions lawfully imposed. (5) Petitioner's activity during the time the certificate was in good standing.” 

            Information related to Petitioner’s criminal conviction, including the sentencing transcript, was directly relevant to Board’s decision on the petition for reinstatement.  Petitioner was not denied a fair hearing or due process of law when Board considered such information. 

Affidavit From Neutral and Unbiased Case Reviewer or Expert Witness

Petitioner contends that he “was never permitted to have a full and fair administrative hearing in California in accord with Business and Profession Code Section 3751 and 494(a) and (c) because there were no Affidavits from a neutral and unbiased Case Reviewer in the administrative hearing for his reinstatement or the summary hearing to support the interim order to revoke and suspend his D.O. License.”  (OB 5.) 

Relatedly, Petitioner argues: “These violations of due process of law occurred when the Osteopathic Medical Board of California to provide an interim order to revoke his California D.O. Medical license failed to provide Keith Ly with an affidavit from an Expert Reviewer of his case in violation of California Civil Code 43.8 …..”  (OB 6.)  Later, Petitioner argues that he was entitled to “Expert Reviewer unbiased testimony” pursuant to Government Code section 11371. (OB 10; see also Reply 9-10 [same].) 

Petitioner’s arguments are based on an incorrect premise that an affidavit from an “unbiased case reviewer” was required by law.  With respect to the Reinstatement Decision, Petitioner does not show that Board had any obligation to obtain “Affidavits from a neutral and unbiased Case Reviewer” or “expert witness.”  Section 3751 applies to respiratory care therapists, not to medical or osteopathic physicians.  Section 494 governs the suspension and revocation of licenses.  It does not apply to a petition for reinstatement.   Civil Code section 43.8 provides an immunity from liability for certain communications related to the evaluation of practitioners of healing or veterinary arts.  It does not apply here.  Government Code section 11371 establishes a “Medical Quality Hearing Panel” within the Office of Administrative Hearings and states that the ALJs “shall have panels of experts available.”  (§ 11371(a), (c).)  Petitioner does not identify any statute requiring Board to obtain or consider affidavits from a neutral “case reviewer” or “expert witness” for his petition for reinstatement.  Petitioner fails to demonstrate he attempted to introduce, or was prevented from introducing, expert witness evidence on his own behalf. 

Bias

Throughout his briefs, Petitioner suggests that the administrative proceedings were “biased” against him.  (See e.g. Reply 11 [praying for an “unbiased hearing”]; OB 9 [arguing that “unbiased process of law” was “overlooked”].)  “Bias and prejudice are never implied and must be established by clear averments.”  (Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 581-582.)  Petitioner must show “‘an unacceptable probability of actual bias on the part of those who have actual decisionmaking power over their claims.’”  (Nasha LLC v. City of Los Angeles (2004) 125 Cal.App.4th 470, 483.)   The fact the Board denied his request for reinstatement, considered his past behavior, and concluded the criteria for rehabilitation were not met is not evidence of bias. 

Based on the foregoing, the first cause of action is denied.

Petitioner’s Challenges to the Revocation Decision Are Time Barred

Petitioner contends that, for various reasons, he was not afforded a full and fair hearing before the Revocation Decision effective March 1, 2016.  (OB 5-7, 9-12.)  Petitioner also seems to contend that the Board prejudicially abused its discretion in revoking his license based on discipline from Washington state and without “clear and convincing evidence.”  (OB 9-10.)  Petitioner did not clearly plead these claims in the petition.  Rather, the petition challenges only the denial of the petition for reinstatement.  (See Pet. 8 [seeking “remand for a rehearing of my petition for reinstatement”].)  Petitioner cannot pursue claims not pleaded in the petition. 

Moreover, Respondents assert a statute of limitations defense to these arguments.  (Oppo. 16-17.)  Respondents’ position is well taken. 

The Revocation Decision was filed on February 10, 2016, and became effective March 10, 2016.  (AR 110.)  Judicial review of final administrative decisions is governed by Government Code section 11523. That section states that a petition for writ of mandate “shall be filed within 30 days after the last day on which reconsideration can be ordered.” (Gov. Code, § 11523.) “The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to a respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period.”  (Id. § 11521(a).)  “[A] proceeding for writ of mandate is barred if not commenced within the applicable limitation period.”  (Kupka v. Board of Administration (1981) 122 Cal.App.3d 791, 794.) The statute of limitations on the disciplinary decision revoking Petitioner’s Certificate expired by April 10, 2016, at the latest. 

In his opening brief, Petitioner states that the Revocation Decision violated due process because “he was incarcerated [and] because the Board did not serve him with a legitimate and lawful interim order notice to revoke his California D.O. License.”  Petitioner states that “Board did not give him 15 days required under the specific time frames stated by statutory law to allow him to respond to the tainted original Osteopathic Medical Board's D.O. License revocation order as required in Business and Profession Code Section 494(c).”  (OB 5.)  Although the argument is unclear, Petitioner may contend that he was not properly served with the Revocation Decision while he was incarcerated. 

The record does not support Petitioner’s claim.  The notice of automatic suspension was sent to Dr. Ly at his address of record with the Board in Mountlake Terrace Washington.  (AR004, 028.)  The default decision and  order was also sent to this address on October 19, 2015.  Petitioner subsequently sent a change of address to the Board, indicating a new address in Columbus, Ohio.  The Attorney General’s Office then sent the notice of default to the Ohio address with an opportunity for Petitioner to present a defense.  (AR028-029.)  The Declaration of Service for the Revocation Decision states that Petitioner was served at 561 Schrock Rd., Columbus, OH 43229 on February 10, 2016.  (AR 156.) 

While Petitioner was apparently incarcerated from November 2014 through 2018 (AR 381), he has not developed an argument that service of the Revocation Decision to the address of record with the Board was legally ineffective.  Petitioner filed a petition for reinstatement on June 4, 2020, showing his awareness of the Automatic Suspension and Revocation Decision.  (AR 1-5.)  The writ petition filed in August 2021 was clearly barred by the statute of limitations to the extent Petitioner challenges the Automatic Suspension and Revocation Decision. 

In reply, Petitioner argues, for the first time, as follows: “equitable tolling permit him to address issues [Respondents] claim he is not permitted.[ see page 16 of the motion submitted on March 6, 2023], to assert although the statute of limitations for submitting these claims of is four years for someone that has been incarcerated. See Bus. And Prof. Code section 17208 and Addison v. State of California (1978) 21 Cal. 3d 313, 320-321.”  (Reply 4.)  “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.”  (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)  Petitioner does not show good cause to raise these arguments for the first time in reply.  Also, these claims were not pleaded in the petition and are unpersuasive.  In any event, neither section 17208 nor Addison v. State (which concerns the Claims Act) support tolling in Petitioner’s case. 

Petitioner’s challenges to the Automatic Suspension and Revocation Decision from 2015-2016, including on due process grounds, are barred by the statute of limitations. Also, Petitioner did not sufficiently plead a claim challenging the Automatic Suspension and Revocation Decision. 

Res Judicata and Issue Preclusion

            Petitioner’s second Cause of Action is entitled “Res Judicata and Issue Preclusion.”  (Pet. 4-5; OB 7-10.)  Petitioner seems to contend, in part, that Board improperly relied on and “relitigated” issues from his criminal conviction, the Revocation Decision, and the Washington disciplinary proceedings to deny his petition for reinstatement.  (Pet. 4; OB 7-9.) 

Res judicata gives “conclusive effect to a former judgment in subsequent litigation involving the same controversy.”  (People v. Barragan (2004) 32 Cal.4th 236, 252.)  Collateral estoppel similarly gives conclusive effect to issues actually litigated and determined in the prior action.  (Id. at 252-253.)  “The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding.”  (Ibid.) 

Res judicata and collateral estoppel do not apply to Petitioner’s petition for reinstatement.  Board was not a party to Petitioner’s criminal case and could not relitigate criminal claims against Petitioner.  Nor was Board a party to the Washington disciplinary proceedings.  Further, as discussed above, in reviewing the petition, Board was required to consider the nature and gravity of Petitioner’s professional misconduct, the offenses for which Petitioner was disciplined, and Petitioner’s rehabilitation since the acts occurred.  (Bus. & Prof. Code § 2307(e); 16 CCR § 1657.)   Thus, it was proper for Board to consider Petitioner’s criminal conviction and the disciplinary proceedings before Washington Board.  Petitioner’s arguments based on res judicata and issue preclusion are unpersuasive.  For this and other reasons discussed below, the second cause of action is denied.

Substantial Evidence Supports Board’s Factual Findings and Legal Conclusions

            Petitioner raises some arguments concerning the sufficiency of the evidence for Board’s Reinstatement Decision.  These arguments are discussed below.

            Petitioner suggests that Board could only deny his petition for reinstatement based on clear and convincing evidence.  (OB 10.)  Petitioner cites no authority in support and the case law is to the contrary.   At an administrative hearing on a petition for reinstatement of a professional license, the applicant “must show by … clear and convincing evidence that efforts made towards rehabilitation have been successful.”  (Hippard v. State Bar (1989) 49 Cal.3d 1084, 1089.)  The Decision shows that Board properly applied this standard and considered the relevant factors from section 1657.  (AR 385-387.)

In concluding that Petitioner had not proven his rehabilitation, Board made the following findings and legal conclusions: 

3A. As laid out in the Washington Board's Final Order, Petitioner has engaged in many egregious violations of the law. It has been over seven years since Petitioner's last violations and. five years since the Revocation Order. Nevertheless, the passage of time without further violations does not automatically establish Petitioner's rehabilitation. Remorse for one's conduct and the acceptance of responsibility are the cornerstones of rehabilitation…. Fully acknowledging the wrongfulness of past actions is an essential step towards rehabilitation.

3B. Petitioner has not demonstrated that he sincerely takes responsibility for his wrongdoing. Petitioner superficially states he accepts responsibility for his crimes, but he simultaneously maintains he was duped, and he points to others as the culpable parties. Petitioner's assertions of blamelessness are not credible, are contrary to the totality of the evidence, and are indicia of a lack of rehabilitation.

3C. Petitioner has shown complete disrespect for any guidelines imposed by authorities on his practice of medicine in Washington. Following suspensions of his Washington license and his DEA. permit, Petitioner continued prescribing medication and practicing medicine, and he refused to cooperate with DEA personnel and Washington State authorities.  Even through the date of this administrative hearing, Petitioner refused to acknowledge that his actions constituted the illegal practice of medicine.

3D. Petitioner lacks the requisite internal understanding of the wrongfulness of his actions, and he is devoid of any change in attitude since his wrongdoing. Petitioner expressed not one moment of contrition for his wrongful acts.

3E. A physician must maintain not just medical knowledge, but also the ethics and responsibility necessary, for the privilege of licensure. Petitioner has failed to demonstrate the integrity necessary to hold a license. Consequently, the Board has concerns about trusting Petitioner to practice medicine. The Board is charged with protecting the public, and Petitioner's unwillingness to take full responsibility for his violations creates a continuing risk to the public that he will reoffend.

(AR 386-387.)

For the most part, Petitioner does not challenge these findings and legal conclusions in his writ briefs.  The seriousness of the criminal offenses and professional misconduct that led to his license revocation are not disputed by Petitioner.  In addition to his criminal conviction for drug-related offenses, Petitioner’s discipline was based on his immunization program violations, hiring of persons without health care credentials for positions that required such credentials, and unsanitary office conditions.  While under a license suspension by the Washington Board, Petitioner also continued to practice medicine, including prescribing medications. (AR 39-42, 43-53, 374-379.)  Protection of the public is the “highest priority” of the Board.  (Bus. & Prof. Code § 2450.1.) Given the seriousness of this misconduct, Board could reasonably demand that Petitioner make a clear showing of remorse and rehabilitation to grant reinstatement of his license.

Substantial evidence supports Board’s findings that Petitioner did not accept responsibility for his misconduct and was not sufficiently rehabilitated.  In his personal statement and testimony before Board, Petitioner stated that he took responsibility for his crimes, but he also stated that he was “blinded” by his love and trust in Bui and that he did not pay attention to the details or know about the drug-growing operation.  (AR 5-6, 332-352, 374-383.)  Further, as Board noted, the letter of recommendation of Dr. Antonio Mangubat noted that Petitioner told him that he was “duped by a woman he loved.”  (AR 384 ,15.)  At the hearing, Petitioner refused to acknowledge that prescribing medications after his license was suspended involved the practice of medicine.  (AR 347-349, 351-352, 382-383.)  Petitioner also did not take the ethics courses ordered by the Washington Board as part of the disciplinary proceedings in Washington.  (AR 349-350.)  Board could reasonably conclude from this and other evidence that Petitioner did not take sufficient responsibility for his misconduct. 

Petitioner contends that, in assessing his rehabilitation, Board should have given more weight to “the fact that he was adjudicated a guilty verdict in a trial, see Exhibit 4(c), where he recognized his wrongdoings and served a sentence to pay for his crime and that his errors of medical practice and of judgment were also used in the federal court to render him a 5 year sentence.”  (OB 7.)  Petitioner also contends that Board should have given more weight to the evidence that he “participated in numerous activities to serve his community during the Covid-19 crisis in the capacity of a volunteer in all programs that permitted him to assist others in need free of charge.”  (OB 8.)   As noted in opposition, the record also includes evidence that Petitioner completed a significant number of continuing medical education courses.  (Oppo. 19.) 

In assessing the rehabilitation factors, Board could reasonably give more weight to the seriousness of Petitioner’s underlying misconduct and the evidence that Petitioner had not taken responsibility for his actions.  Board’s findings and legal conclusions are supported by substantial evidence.  In assessing whether substantial evidence supports the Board’s decision, the court does not reweigh the evidence.  “Courts may reverse an [administrative] decision only if, based on the evidence …, a reasonable person could not reach the conclusion reached by the agency.”  (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)   

The second cause of action is denied.

Third Cause of Action – Fourteenth Amendment

In his third cause of action, Petitioner reiterates due process arguments already analyzed in the discussion of the first cause of action.  For the reasons already stated, Petitioner received a fair hearing and due process of law before Board for his petition for reinstatement.  The third cause of action is denied.

Timeliness and Sufficiency of Amended Answer

            Petitioner suggests that Respondents’ amended answer, filed June 21, 2022, was untimely.  (OB 9-10.)  In reply, Petitioner also seems to argue that the answer and/or opposition brief does not comply with CCP section 454 or is otherwise “too generalized.”  (Reply 3.)  These arguments are not persuasive.

The amended answer was filed within 30 days of execution of the notice of acknowledgement of receipt of summons for Dr. Buhari, which was signed May 25, 2022.  (See Notice filed 6/7/22.)  Petitioner does not show the amended answer was untimely.  (See CCP § 415.30(c); § 412.20(a)(3).)  Further, Petitioner had sufficient time to respond to the amended answer and does not show any prejudice.  CCP section 454 does not apply.  The answer is sufficient for Petitioner to understand Respondents’ allegations and defenses in response to the petition.  In any event, a writ of mandate “cannot be granted by default.”  (CCP § 1088.)

New Reply Arguments

            The reply makes various new arguments, some of which are analyzed above.  Petitioner also makes new reply arguments based on the Administrative Procedure Act and CCP section 473.  (Reply 5-7.)  Petitioner does not show good cause to make new arguments in reply.  (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)  In any event, Petitioner cannot rely on the federal Administrative Procedure Act.  The federal act does not apply to the Board’s proceedings.  Nor has Petitioner shown he is entitled to relief under CCP section 473 based on attorney error.  Under some circumstances, a party may be entitled to relief when attorney error results in a default judgment or dismissal.  Petitioner and his counsel participated in the hearing regarding his reinstatement.  There was no default with respect to that hearing.

Conclusion

The petition for writ of mandate is denied.